The Massachusetts Supreme Court ruled today in Commonwealth v. Thomas Gerhardt that field sobriety tests are admissible for an OUI marijuana, but cautioned that jurors cannot rely on these tests in and of themselves to find someone guilty or impaired by marijuana. The model jury instruction drafted in the opinion addresses the concerns that jurors will assume FST are accurate for marijuana as for alcohol. The SJC expressly tells jurors that there is no correlation between performance on field sobriety tests and impairment by marijuana.

Additionally, the SJC found that officers cannot testify as to their lay opinion regarding impairment by marijuana as the scientific community has not developed any consenusus on the signs showing impairment by marijuana.

In an article from Chris Villani of the Boston Herald, the SJC was described as splitting the difference. While that is a fair assessment of the decision, I think the cautionary jury instruction will greatly reduce the value of the field tests to a jury, so while admissible, those assessments, as the Court refers to them, should have diminished weight in the eyes of the jury. Further, the exclusion of lay opinion as to impairment leaves the jury without any testimony tying the observations to impairment from marijuana directly from the officer. That is a significant benefit to the defense and based on the lack of scientific agreement on the signs of marijuana impairment, is a step forward in ensuring a defendant gets as fair trial. The Gerhardt case was one where DelSignore Law submitted an amicus brief on behalf of the National College of DUI Defense on behalf of the defendant.

SJC adopts District Court Judge’s findings regarding the scientific community and marijuana impairment.

The SJC accepted the studies quoted by the district court judge that there is no correlation between poor performance on field sobriety tests and being impaired by marijuana. The SJC found the tests admissible because the standard for admissible evidence is low, allowing observations about the defendant’s balance and ability to follow instructions that would flow from the field assessments. However, the SJC held that the FST should be referred to as assessments because they are not scientific tests for impairment by marijuana. Additionally, the jury instruction makes clear that field sobriety tests alone cannot be the sole basis to find someone under the influence of marijuana.

The lack of scientific consensus was significant to the court, while it allowed the evidence in it greatly qualified and greatly limited its effectiveness for the Commonwealth because jurors are going to be cautioned that these assessments do not show impairment by marijuana. The court was very specific, saying that in all circumstances it must be made clear that the walk-and-turn, the one leg stand, and other field sobriety tests do not directly test marijuana impairment.

Lay Witness cannot testify as to impairment by marijuana

The SJC also made another significant finding in the case, finding that because there is no scientific consensus on the characteristics of impairment from marijuana, a lay person cannot testify that someone is under the influence of marijuana. This means that a police officer will not be able to testify without specialized training as a DRE (drug recognition expert) that someone is under the influence of marijuana. The Court found that the lack of uniform characteristics of someone under the influence of marijuana and the scientific consensus led the court to preclude lay opinion that someone is impaired by marijuana.

Jury instruction to inform jurors about the lack of scientific reliability in FSTs for marijuana impairment

The most significant factor from the decision is the jury instructions that will reduce the likelihood that jurors will assume that field exercises are reliable for marijuana as they are believed to be reliable for alcohol. The Court held that jurors must be told that these are not scientific tests for impairment by marijuana, and that a person may have difficulty performing these tests unrelated to the consumption of marijuana.

The court found that they can consider the evidence only as to how the defendant’s balance, mental clarity, and ability to retain and follow directions and instructions, and found that the field tests alone will not be enough to show impairment by marijuana.

Impact of the decision

The decision, I think, is a win for the defense because it limits the potential of jurors over-valuing the field sobriety tests and assuming that these tests are reliable for marijuana just as they as for alcohol. Further, by not allowing lay witnesses to testify as to marijuana impairment, the SJC recognized and gave great deference to the scientific community’ findings that there are no uniform signs of impairment by marijuana. The decision shows the Court gave deference to the scientific community to prevent evidence from having the aurora of scientific reliability when it is essentially police created evidence that has never been tested. The SJC put this in the proper prospective with the jury instruction.

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